A Week Later: Reflecting On Aaron Swartz

from the memorials-and-continuing-action dept

For those of us who crossed paths, even if briefly, with Aaron Swartz during his short lifetime, this week was certainly a difficult one. He accomplished so much, but the really distressing point is how much more all of us expected him to accomplish in the future, and how we will all be worse off without that happening. I have a big list of people who I've asked to do the weekly Techdirt favorites -- along with many people who I want to ask, and each week I pick people off of that list. Aaron's been on that list for a long, long time, and I never got around to asking him. And now I never will.

This week, instead of our usual "favorites of the week" post from the community, I wanted to bring together some of the posts we had about Aaron, and ask people to reflect, and think about how to help continue to build out the legacy of some of what Aaron started.

First off, we had our initial post trying to highlight just how much of a loss this was for everyone. This is a point that many who didn't know him still don't understand. Aaron could be strong-willed and stubborn at times -- and always rubbed some people the wrong way -- but I don't know anyone who knew him who didn't think that he did amazing things and likely would continue to do amazing things going forward.

A key aspect of all of this, of course, was the case against Aaron. Whether or not you believe that triggered the suicide, it was worth exploring the case on the merits -- which we found to be seriously lacking. For what it's worth (because I know people will bring it up), lawyer and legal scholar Orin Kerr -- who I greatly respect, and often agree with -- has published a series of pieces in which he argues that the case and the prosecution had merit, even if he still believes strongly that the law it was based on, the CFAA, is greatly in need of fixing. Kerr's opinion is one such opinion -- and while interesting and well thought out, it fails to convince me for a couple of key reasons.

First, much of it seems to be arguing against a strawman. While he agrees that there are problems with the CFAA, he seems upset that people are focusing on the CFAA because of Aaron, and seems to suggest people should be upset about the larger issues with the act. But... we are. Lots of people are. There have been tons of discussions about how Swartz's case is not unique and how the problems of the CFAA and over-aggressive prosecution are systemic and not outliers. So I'm not sure what he's arguing against there, other than a strawman.

But, more importantly, I think Kerr errs in making statements about some of what happened, which he portrays in the most negative light, not even assuming that there may be perfectly reasonable, non-nefarious, reasons for those actions. Changing your IP address, and later your MAC address, are valid ways of troubleshooting why something stopped working -- to locate where the issue is cropping up. They are not, automatically, suggestions that someone is trying to avoid a block or hide one's identity. I am, of course, not the only one who has a problem with Kerr's analysis. Plenty of legal scholars have spoken up about why they believe Kerr is misguided on this particular case. For example, legal scholar Jamie Boyle does a wonderful job of walking through Kerr's argument and highlighting where his interpretations and understanding of what Aaron may have done (or what his motives were) could very well be mistaken.

Either way, we agree with Kerr that the laws under which Swartz was charged are problematic. As Tim Wu noted, they're so broad that almost anyone can be a felon. In fact, law professor James Grimmelmann noted that he, too, could be guilty of the exact same thing that Aaron was charged with, if a prosecutor decided he or she wanted to take Grimmelmann down. Furthermore, the maximum prison time trumpeted by US Attorney Carmen Ortiz seems so disproportionate not just to the "crime" (if there was one), but also when compared to the maximum punishment people face for real crimes.

While the US Attorneys Office initially stayed silent, Carmen Ortiz's husband, IBM exec Tom Dolan, first started sniping on Twitter, criticizing the Swartz's family just a few days after his suicide. Talk about insulting. The next day, Ortiz finally came out with a statement. Unlike MIT's statement -- which admitted that the institution needed to reflect carefully on what happen and set up an investigation to explore whether it could have done better, Ortiz's statement not only took a very defensive stance, but came across as both tone deaf and completely disconnected from reality. She claimed that she and her colleagues realized that Aaron's "crime" wasn't that big of a deal, which is why they offered him a plea bargain -- whereby he needed to plead guilty to 13 felonies and they'd only recommend 6 months in jail (the judge could choose a different amount of time) -- but ignored how she and her colleagues used the possibility of 35 years or more to threaten and badger Aaron as they tried to coax the plea bargain out of him. Larry Lessig gets it right here in expressing his sheer anger at Ortiz's statement. He berates himself for even thinking that Ortiz might at least be somewhat self-reflective and admit that perhaps the issues should be explored.

The dumbest-fucking-naive-allegedly-smart person you will ever know: that guy thought this tragedy would at least shake for one second the facade of certainty that is our government, and allow at least a tiny light of recognition to shine through, and in that tiny ray, maybe a question, a pause, a moment of “ok, we need to look at this carefully.” I wasn’t dumb enough to believe that Ortiz could achieve the grace of [MIT President] Reif. But the single gift I wanted was at least a clumsy, hesitating, “we’re going to look at this carefully, and think about whether mistakes might have been made.”

Of course, if the US Attorney's Office refuses to think twice about this, at least some in Congress are now looking to force them to do so. Rep. Zoe Lofgren promised to reform the CFAA. Rep. Darrell Issa promised to investigate the DOJ's handling of the case. And Senator John Cornyn stepped up to the plate with a series of questions about the case, sent to Attorney General Eric Holder. Hopefully, something actually happens. We need real change, rather than bogus statements... and more people bullied by the increasingly misnamed Justice Department.

But, finally, in all of the anger and frustration and sadness, there is one thing that is most important. Aaron was a builder and a doer (sometimes to a fault). And the best way to honor his memory is to get out there and do stuff: build stuff up and share some knowledge. Thankfully, it's already inspired many researchers to free their own research. It's inspired Dan Bull to write a song, and should have us all thinking about the difference between content and knowledge -- and which is more important.

Finally, yesterday was Internet Freedom Day, commemorating the day the internet went dark to protest SOPA and PIPA. Aaron Swartz was a huge part of making that happen, and yet he didn't live to see the one year anniversary. Many of us in San Francisco gathered last night to celebrate the day, but the memory of Swartz was a big part of it as well. Peter Eckersly told the flip side of Swartz's great video about his own role in stopping SOPA and PIPA. Of all the people who deserved to bask in the success of that day last year, it's Swartz, who should have been at one of these gatherings telling his own story, rather than having to have someone else share it.

This week, these are not my favorite posts. Far from it. These posts are a lament for what we've lost, a plea to prevent any more such losses, and a smidgen of hope that within all this tragedy, true reform might blossom. From my interactions with Aaron, I believe it's exactly the sort of response he'd want -- even if we'd all prefer that he were still around to lead the charge, rather than merely be the inspiration for it all. Aaron's gone and the world is worse off for it. But let it be a challenge to all of us to do more, to do better, and to at least try to replace some tiny piece of what we've lost.

MIT and Journals

Re: MIT and Journals

With academic journals, the academics provide the content, peer review and editing at their own cost. They usually have to pay page costs to get the paper included in a journal, as well as assign the copyright. This all has to come out the academics grants. Many areas of academe are setting up free access electronic journals, with the page costs going to pay for servers and administration. Usually these will waive the page costs under some circumstances.
Whoever provided the research grants paid for the journals, which includes a significant taxpayer contribution.
Does this answer your question?

Re: Re: MIT and Journals

YUP

Maybe we should all be asking for a full investigation into the justice department, not just about this case but also about others. It s about time that the Justice department started answering for IT'S crimes of coercion and Mafia like tactics to force people to accept ple deals with the threat of much longer time in jail if they are somehow found guilty of a crime they did not commit. In fact it shows how much illegal goings on there are in the Justice department that any innocent person should ever have the doubt of getting to the truth in a court, especially when they know they are not guilty. If the Justice Department has to be completely reformed i say that is what needs to happen, and maybe calling for an investigation will do this.

Re: YUP

The DOJ has a rule on the books because they hid evidence material to a case from the defendant. It made their case look bad. They got caught, made a rule... they have caught some still hiding evidence and no ones been fired.

If you subvert Justice how the hell do you still have a job with DOJ?

I think the old adage of lets nuke it from orbit and start over is better.

Re:

My most sincere hope for you is that, in your life, when someone important to *you* passes away unexpectedly, and you seek to honor their memory, some anonymous internet coward does not say the kinds of things you have chosen to say here today.

I honestly would never wish such a feeling on anyone, nor can I fathom the sort of person who thinks that such actions are reasonable or called for.

I recognize why you are doing it, but I sincerely hope you never get to be on the other side of such treatment.

Re: Re:

I think you have shown great restraint in all of these posts you have made this week. A week that would of been extremely difficult for you with your own personal losses and dealing with and trying to stay as unbiased and unemotional as you have been in relation to Aaron whom you also knew.

I think we all should be grateful that you have enough grace, fortitude, and strength to even have done any posts this week let alone not bring down a rain of abuse on any of these people (and I won't even call them trolls any more since they are worse) who have nothing better to add to a discussion then vitriolic hate against anything or anyone that doesn't conform to their world view.

Re: Re:

My most sincere hope for you is that, in your life, when someone important to *you* passes away unexpectedly, and you seek to honor their memory, some anonymous internet coward does not say the kinds of things you have chosen to say here today.

I honestly would never wish such a feeling on anyone, nor can I fathom the sort of person who thinks that such actions are reasonable or called for.

I recognize why you are doing it, but I sincerely hope you never get to be on the other side of such treatment.

Nobody is milking this more than you. Nobody. That should tell you something. There's talking about it in a productive way, and then there's milking it for everything you can get out of it. You're doing the latter, and you know it. Can you point to any other person on earth who has written about it even half as much as you? No. That's your answer. You're abusing this just like you did everything during the SOPA debacle. You grab onto anything you can and milk it for all it's worth. You should be ashamed of yourself, but I know you lack whatever it is that allows normal people to feel shame. All you know how to do is manipulate people. All you do is capitalize on everything you can to further your agenda. An agenda, of course, that you're too scared to talk about substantively and productively. Stop being such a fucking coward. Start actually being open, human, and awesome. You never will be, I know. But I wish you could be.

Re: Re: Re:

" Start actually being open" says the anonymous coward who won't bother putting his name to his words.
So what if Mike has an agenda? We all have agendas. You, me, that guy in the cubicle next to you. We all have things we plan to do, things to aim for. Are you saying Mike shouldn't have a plan, a goal?
Mike is writing about Aaron in a productive way, demanding that the CFAA law be amended so the legal system can't use it to bully other people.

No, according to you, its alright for laws to be bought and sold by copyright maximilists, but the instant someone tries to tip the scales in the other direction...GOOGLE GOOGLE! BIG CORPORATIONS BUYING CORRUPT POLITICIANS!

Re: Re: Re: Re:

Well, Rikuo, technically that AC does have a name. You know him, I know him, we all do. Just look at the key phrases and words he's using, it becomes rather obvious who it (most likely) is. It's AJ.

He has a habit of not signing in. Or better said, "I'm not signed in automatically on this computer." (Because we all know how hard it is to sign in on a computer that isn't your primary one. [rolls eyes])

But yeah, that's my opinion on who it is. The fact that he is constantly using the words "open and honest" and essentially bitching about that, as well as some use of what I could call "legalisms" in discussing what Aaron was doing and whether or not he knew he was doing something illegal. All those things are routinely done/used by AJ, to the point that I would with 95% certainty say it is AJ. Writing styles are like finger prints. No two people have the same one. They may have similar styles, and some people can emulate the writing styles of others to a remarkable degree, but at the end of the day everyone's is truly unique and even the best attempts at emulating the writing style of another fall short and the differences, however subtle, can be noted which allow others to tell someone is attempting to write like somebody else. (A great example of that would be Eoin Colfer's take on the Hitchhiker's Guide. It's written in a Douglas Adams' writing style, but it's just not Douglas Adams. The attempt is there, but sadly, or maybe not so sadly, it falls short of the mark. It's pretty much done right, but there's just something missing.)

Re: Re: Re: Re: Re:

Oh, you're not wrong. That is most definitely AJ. His writing style and trollish manner of communicating on this site is unmistakable. He communicates with a level of vitriol, hatred and contempt that makes me wonder just what kind of person he is in real life. Does he really communicate this way with everyone he comes in contact with or is it just the anonymous nature of the internet at work here?

Whenever I read his self-righteous and abusive posts, I wonder why he thinks he is having any impact on discussions here. Sure, we get angry and post responses to his rants. But, his behavior has gotten so cartoonish as to not even be worthy of taking seriously or paying much attention to, other than to warn new visitors what to expect from him.

Re: Re: Re: Re: Re:

He has a habit of not signing in. Or better said, "I'm not signed in automatically on this computer." (Because we all know how hard it is to sign in on a computer that isn't your primary one. [rolls eyes])

I'm not signed in because I chose to not be signed in. It's a conscious decision.

Re: Re: Re: Re: Re: Re: Re: Re:

So much for the Techdirt commitment to free speech and right to anonymity. Like most of their ideals "it depends".

Apparently you do not understand said "commitment"

I absolutely believe Joe has the right to say whatever he wants, and to choose to do it anonymously.

He does not have the right to be free from judgement by others for that choice.

Is that so hard to understand? The entire point of freedom is that other free people will judge you for your choices, rather than a government forcing you into a particular choice. It does not mean you will not be judged at all.

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

We're having a nice discussion on the merits.

Yes, you seem to be mostly calm today. Only a matter of time before the switch gets flipped again (is this a sober/drunk thing? my guess has always been that you have a substance abuse problem of some sort, though I guess it could also be a bad marriage or just a psychological condition), and you'll back to being a blithering asshole like you were in your first few comments on this thread. I'm glad you have found some people to humour you until then, I guess, but I won't be one of them.

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

Your welcome to hold that opinion of Mike, still there is a right way and a wrong way to criticize (see my response to yaga's comment below). This is also why I issued you the the retraction and apology for the statement I made earlier in our debate. Disagreement is fine. Civility is important. Trolls have none and resorting to personal bashing just makes you look like a troll.

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

And what excuses his behavior? I think it's disgusting how he's capitalizing on Swartz's death, and I feel like that's a point worth making. I'm publicly shaming Mike because I think he deserves it.

Once again, I can only hope that, in your life, when someone important to *you* dies, that you do not have to experience the horror of someone mocking both the deceased and the way those who knew him choose to grieve.

Remembering someone who accomplished great things is "capitalizing" on their death? I'll tell that to my mother who lost her sister last week. How dare she "mourn" by talking about her sister.

Using the death to hope that the conditions that led to his death won't happen to others is "capitalizing"? Again, I'll let my mother know that her wishes to help stop cancer after my aunt's death are things she should be ashamed of.

I am not "capitalizing" on his death. I am talking about it. This is what people *DO* when people who are important to them die. They seek to remember the person and they seek to change the conditions that led to their deaths. I can do both of those things thanks to this site, and I choose to do so.

That you choose to not just mock that, but to attack me and claim that I should be *SHAMEFUL* for doing such things? I have no words... other than to hope that you never have to go through such a thing as to have someone mock YOU for how you mourn someone.

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

Sociopath

noun, Psychiatry.
a person with a psychopathic personality whose behavior is antisocial, often criminal, and who lacks a sense of moral responsibility or social conscience.

Let's see...Mike Masnick, runs an online blog with an open comments section, has never been charged with a crime, and calls for out of date laws that don't work to be changed.
Yeah sure he's a sociopath.

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

Maybe it would be different if the discussion revolved around depression and Swartz wasn't a political figure. Their are thousands of people who have faced a short period of incarceration without ending their lives. IMO, depression was the root cause, not the flaws in CFAA, overzealous prosecutors or anything else.

Re: Re: Re: Re:

So Rikou, what is important to you here? A meaningless name like "Rikou" or do you think he should use his true name? How does it matter? What is said anonymously is anonymous whether it is a pseudonym unique to an individual or simply "anonymous coward". I assume that you know the little snowflake thingy follows a poster throughout the thread.

Re: Re: Re: Re: Re:

The name is Rikuo, not Rikou (learn to read and spell!). The name is meaningless to you but meaningful to me, I chose it as my online handle for a specific reason.
Yes, anonymous speech is anonymous whether you have a signed in handle or are an AC, but I called out on that when that AC said "Why aren't you more open!" while not being open himself.
I've seen the snowflakes change from time to time, or someone just goes to a different computer. No way for us to keep track of whos saying what. At least the fact I have a profile means I have to be careful about what I say: I have a reputation here on this site, and if I suddenly start saying something the opposite of what I've been saying for years, then someone else can call me out on hypocrisy. Not with you, AJ. You consciously chose not to sign in, in a weak attempt to not put any sort of ID to what you write.

Re: Re: Re: Re: Re:

The name is Rikuo, not Rikou (learn to read and spell!). The name is meaningless to you but meaningful to me, I chose it as my online handle for a specific reason.
Yes, anonymous speech is anonymous whether you have a signed in handle or are an AC, but I called out on that when that AC said "Why aren't you more open!" while not being open himself.
I've seen the snowflakes change from time to time, or someone just goes to a different computer. No way for us to keep track of whos saying what. At least the fact I have a profile means I have to be careful about what I say: I have a reputation here on this site, and if I suddenly start saying something the opposite of what I've been saying for years, then someone else can call me out on hypocrisy. Not with you, AJ. You consciously chose not to sign in, in a weak attempt to not put any sort of ID to what you write.

Re: Re: Re: Re: Re: Re:

Sorry, I obviously don't have your clerical skills. Carry on! As far as your on-line rep, I doubt most people stalk your comments searching for inconsistency. Maybe you should inquire of Techdirt as to why they permit it. Personally, it's a big "who cares" therefore I'll leave it to you to obsess over it.

Re: Re: Re: Re: Re: Re: Re:

They don't have to stalk my comments. I've frequently called here for the abolition of copyright and for someone on the opposite side of the fence as me to give us a decent debate. Regulars here know that. Now, imagine if someone signed with my handle were to start talking pro-copyright tomorrow? They'd know, because the name associated with that comment is actually someone who frequently says the opposite.

Re:

Techdirt's coverage of this event was surprisingly muted compared to many other sites. Probably due to the fact that techdirt covers what other people online are saying. I realize that you do not understand what I just wrote; but I felt compelled say it anyway, and thank you for furthering the cause of freedom through your almost unbelievable stupidity.
Paul.D.

Re: Re: Re:

You must work in marketing or politics. It's truly impressive, in a sick and twisted way, how far you can twist anything that is said to further your own goals. Pretty sure that makes you the real sick-o here, but good luck trying to convince us all otherwise.

Re: Re:

"I know I'm asking far too much of a cowardly troll, but do you think you could actually explain this silly accusation to keep repeating?"

I can explain it for the troll. "Keep milking it to further your agenda" is a truism. Obviously, the post furthers the writer's agenda in the sense that everything written advances a writer's beliefs. Golf clap.

As usual, the failure of the TechDirt troll is not that he is trolling, but that he is too poor a thinker to say anything important when he trolls. Most people on TechDirt are smart, so the troll confuses stupidity with providing a fresh perspective.

Re:

A form of justice?

It has come to my attention that the alt.usenet.kooks Usenet newsgroup has nominated the United States Department of Justice for their "Bobo Award", which is the "highest" of their awards and is given only to those kooks whose online looniness leads to bad real-life consequences. The previous "winner" was Andrew Cheung, the starvation-diet proponent who ended up causing several deaths. The reason for the DOJ's Bobo nomination is, of course, having driven Aaron Swartz to suicide.

People might be interested in voting for those clowns at the DOJ when the awards are voted on, I think in February.

You might also be interested that the author of the nomination extensively cites Techdirt's own coverage of the story in support of her arguments.

(Note: voting would require making Usenet posts to a newsgroup known to harbor its own share of stalkers and nutjobs; you might want to take steps to protect your identity, not from the government but from other kooks. Free news server AIOE requires some configuration but obscures your posting IP and allows arbitrary "from" names, without signup; Google Groups is easy to use if you're not familiar with Usenet, but exposes your posting IP, so you might want to use a proxy of some sort if you vote from there, or to post from a public WiFi some distance from both your home and work.)

He publicly derided those trying to expose him, ruining some of their lives. "We sued so many people," Armstrong told Winfrey -- people who were telling the truth and lost to him in court in spite of it.

We have a justice system that is not about the pursuit of the truth, is about careers and how they may look, is about pandering to the right people so you can get ahead.

I am ashamed not by the actions of others, I am ashamed to not be wise enough to see a solution, I am ashamed to not be smart enough to find ways to change things, I am ashamed because I dropped the ball.

This is what drives me today, shame to have allowed such things to happen.

Mr. Aaron made a choice, maybe the right one for him, I will never know, what I do know is that I need to try harder to make not only the justice system better but to understand how it evolved into what it is today, there is a cause for all of it, and I may have played a role in it and that bugs me.

Changing IP and MAC address is not wrong

I don't get this notion many have. Changing your ip address or MAC address are not wrong, full stop. They are changing network configs. It sounds big and scary to luddites, and people who don't understand how this stuff works.

"He changed his MAC address?!? That must be hacking cause I don't even know what it is"

It's not hacking, it's not wrong, and it's not even hard.

Arguing that he changed his ip and mac address shows knowledge of wrong doing is idiotic. It's like arguing someone changing their shirt demonstrates knowledge of wrong doing.

Re: Re: Changing IP and MAC address is not wrong

Because changing the ways computers network is TOTALLY COMPARABLE TO USING A FIREARM. Just think of all those data packets that are being killed horribly because the network gave me a new address! How awful and horrible!

Here's an interesting tidbit: what Swartz did is something computers typically do automatically. Sometimes without you knowing it.

Your computer could be "shooting it's internet gun" or whatever dumb comparison that I'm sure makes sense to luddites such as yourself, and you wouldn't know! You could be murdering so many innocent network configurations just by the very act of using your computer.

But no, please, tell us about how this heinous crime inadvertently hurt real packets of data. Can you point to this doll and let us know where his MAC touched you?

Re: Re: Changing IP and MAC address is not wrong

Your analogy couldn't be more wrong.

To have the correct analogy you would need to equate changing your IP/MAC with changing your name. Though even then it is a very far stretch. The DoJ equated Aarons' IP/MAC changing with the changing of a vehicles Identifier Number (VIN) but even then they are totally wrong.

An IP or a MAC are arbitrary non identifiers the are only relevant per session of any transmission and can change at whim between sessions. This is why no courts ANYWHERE have ever made the leap to say that IP/MAC's identify any person other than an actual device (and this is only prima facia evidence based on assumptions...like fingerprints actually and we all know how problematic they are now after the FBI cock-up in Spain] AT the instant of the log only since they are specifically time based.

Therefore there is NO mens rae requirement for changing of MAC/IP since they are always legal to do so. Even if in the strange circumstance that you could state based on previous whatever that the intent MUST be there, the balance of proof is NO reasonable doubt and doubt is very much at the forefront since there are many more and reasonable reasons why it might be changed.

Though I suspect you knew all that and your own state of mind was instead to be vindictive, malicious and trollish

Re: Re: Re: Re: Changing IP and MAC address is not wrong

Actually on the Volokh discussion, I actually saw some try to justify "Felony interference with a business model."

Too funny.

Here is my take on the whole JSTOR/MIT/Swartz affair and please feel free to correct me or dispute me because I have still not decided if what Arron did was "wrong" in my own mind.

- JSTOR offered unlimited downloading for those on MIT's network.
- MIT's had (has?) a very open network policy that lacked "even basic controls to prevent abuse". I also believe that MIT's network didn't require registration or even have a clickwrap TOS.

Given those two facts, any user on MIT's network has access to unlimited downloading of JSTOR docs and basically anybody can access MIT's network. How was Arron acting illegally by conforming to the terms set before him? It seems to me that this boils down to a TOS violation or contractual dispute between JSTOR and MIT, and didn't even involve the end user of MIT's network.

Now as for the part about accessing the closet, that could very well be construed as trespassing.

My mind is not quite as clear on the "illegal accessing of the network" part though. It was an open network, anyways. Most likely the same results could have been achieved by befriending a student with a dorm room or even with the public access computers in the library.

Re: Re: Re: Re: Re: Changing IP and MAC address is not wrong

Let's try and make a stupid real-world analogy.

Swartz walks down a hall-way, sees a door with a sign saying "Tax-payer funded research documents inside, FREE TO TAKE/COPY!". He jiggles the handle, finds it unlocked, goes in and copies the files. A few times, the door mysteriously closes, but each time, he figures out a way to get it open again: by using the door knob, by propping a book between the door and the frame, etc. All perfectly legal and legitimate actions to take.
At worst, yes, he might be charged with trespassing (then again, what with there being no notice on the door saying access is restricted...)

Re: Re: Re: Re: Re: Changing IP and MAC address is not wrong

One of the more interesting parts of the Volokh discussion was the attempts to support the claim that because he hid his face from the camera and he ran from the police, he KNEW he was committing a crime and had a willful disregard for the law.

One of my counter arguments was that his actions indicated that he didn't want to be arrested, but that is not the same as knowing you are committing a crime as people are arrested for filming the police when it is not against the law.

Furthermore, if he had such a blatant disregard for the law, believing that the ends justified his means as long as he could avoid being caught, as they were suggesting, why then did he not simply create a virus that would create a mini bon-net on their network, requesting documents periodically at a rate low enough not to arouse suspicion and relay them to various remote locations. While this would blatantly violate the CFAA, it would decrease the chances of being caught by requiring only one access to the network to upload the virus and distribute the process such that it had less of a chance of being detected and this sort of action would have been well within his skill set. No one responded.

Re: Re: Re: Re: Re: Re: Changing IP and MAC address is not wrong

One of the more interesting parts of the Volokh discussion was the attempts to support the claim that because he hid his face from the camera and he ran from the police, he KNEW he was committing a crime and had a willful disregard for the law.

Evidence is probative if "it has any tendency to make a fact more or less probable than it would be without the evidence." FRE 401. Him covering his face tends to make it more probable that he knew he was committing a crime because that's what a person who know they are committing crime a would do. Just like the bank robber with the ski mask. It could that it's cold outside, but it's more likely that he knows there's cameras and he doesn't want to be filmed while he commits his crime. This stuff isn't hard.

One of my counter arguments was that his actions indicated that he didn't want to be arrested, but that is not the same as knowing you are committing a crime as people are arrested for filming the police when it is not against the law.

He feared being arrested because he knew that what he was doing appeared to be illegal because he knew it was illegal. Those databases are private property. They cost millions and millions of dollars to maintain. The school pays for a subscription because there is value there. If someone "liberates" that database, they take the value of that database without having to pay for it. That's inherently wrong. This stuff isn't hard.

What if my only intention in selling 500 lbs of marijuana was to draw attention to my belief that marijuana should be legalized? That Ok?

Not quite the same, Sparky.

If your intention was to get arrested smoking one joint as civil disobedience knowing it was only a misdemeanor and the Feds hit you with 20 counts of intent to distribute, your analogy might begin to be close.

I notice that you completely ignore the part about a more effective way of accomplishing the goal with less chance of being caught disproving a blatant disregard for the law.

So because a criminal could have been sneakier, that shows that they weren't breaking the law? Your arguments just aren't persuasive. I ignored that argument because it's nonsensical. I doesn't matter what he didn't do. It only matters what he did do.

No you ignored it because you have no answer for it. Hiding his face and running from the police indicate that he was aware of adversity and attempted to avoid it. It's stretching to take that to the level of willfully and knowingly committing a crime.

Personally, I think he was trying to walk a fine legal line without crossing it to commit a crime. Perhaps Harvard had a stated TOS that he would have to agree to to gain access there and he used MIT because they did not and I think in his mind he was prepared to defend himself against allegations of criminal activity if they arose. And had they charged him with an appropriate misdemeanor, we would have seen that. What he wasn't prepared for was the DOJ twisting a law meant for something completely different into 13 felony charges with a jail term. Upping the ante proved too much for him to handle. To the prosecution, it's just a game where they can often win simply by playing hard ball, so they do. He wasn't prepared for that.

Re: Re: Re: Re: Re: Re: Re: Changing IP and MAC address is not wrong

Him covering his face tends to make it more probable that he knew he was committing a crime because that's what a person who know they are committing crime a would do.

But it's also what a lot of people do when they aren't committing crimes. I don't commit crimes myself, but I do try to avoid having my face appear on surveillance cameras whenever possible. And I would go to great lengths to do so if I were engaging in an action that, while legal and ethical, might enrage powerful people.

He feared being arrested because he knew that what he was doing appeared to be illegal because he knew it was illegal

Even in retrospect, it's not entirely clear that his actions were illegal.

Also, speaking generally, innocent people facing arrest have a great deal to fear. Fear of arrest is not any kind of indication that the person believes he is doing something illegal.

2 - Because he was not supposed to be there without supervision, which is not the same as knowingly knowing he was committing a crime.

3 - To protect somebody else who allowed him entrance and warned him not to get caught by the camera or he could be in trouble because of internal rules, this all without knowing about criminal offenses.

People bend the rules all the time, proof of that is when any law enforcement strikes the first thing they do is "operation turtle" where they follow by the book every and each rule to the letter, specially customs, and we can all see what happens, so don't even try to say "he knew the rules", he probably knew the real rules of the place and not the ones on paper, which again is not the same as "complete disregard for the rule of law".

Quote:

He feared being arrested because he knew that what he was doing appeared to be illegal because he knew it was illegal.

Are you psychic now?
How do you know what he knew at the time?
Suspicion behavior is not enough to infer intention to commit a crime, it must be an action that shows without a doubt that he was intent in committing a crime, using a connection to download freely available material is not a crime, I will do what you did there and say that he knew the material was free, he knew it probably wasn't against the law or could have reasonably believed it was not against the law to download free available material, he may have been perfectionist to a fault trying to get the maximum of material in the shortest period of time possible and found a not by the book way of doing it, which is not a reason to believe he knew anything about breaking any laws, he may have known he was breaking MIT rules, he may have run because it would look bad, he may have known that he could have his privileges if any revoked, he could have believed somebody could get in trouble because of him and was trying to avert such situation.

He could have feared a number of things before he was fearing the "LAW".

He didn't even had a history of hacking anything or doing white-hat stuff let alone black-hat hacking style, so how do you conclude he was fearing the law and knew he was breaking the law?

You don't you assume, and you are trying to portrait a great young mind as some devious person hellbent on world domination, shame on you dude.

Re: Re: Re: Re: Re: Re: Changing IP and MAC address is not wrong

One of my counter arguments was that his actions indicated that he didn't want to be arrested, but that is not the same as knowing you are committing a crime as people are arrested for filming the police when it is not against the law.

You can't really mean this? Are you saying that an innocent person would race away from a cop when he pulls up behind him with his lights flashing? Or that when an officer hails you you take off running? Suggesting this makes you look even stupider than you obviously are.

Re: Re: Re: Re: Re: Re: Re: Changing IP and MAC address is not wrong

Are you saying that an innocent person would race away from a cop when he pulls up behind him with his lights flashing?

An innocent person might continue to drive on to a location they feel safe in, such as a shopping market or police station parking lot. There is ALWAYS another side to the story than just authority's version.

Or that when an officer hails you you take off running?

No, but I might continue on my merry way, unless I am under arrest. I do not technically have to obey a police officer's command, unless not doing so may harm myself, others or property.

Re: Re: Changing IP and MAC address is not wrong

By itself, changing your IP and MAC address is not wrong, just as discharging a firearm at a gun range is not wrong.

But it is your intent that makes all the difference.

You can discharge a gun at a range, but if you point that gun at a person at a gun range and discharge it, it is murder.

It has to do with WHY you did what you did, and if he changed his IP and MAC because he was trying to hide his identity and cover up a crime then it is wrong. And a crime.

I know it's a bit hard for you to understand these things, but try to keep up please.

Of course. Mike tries to brush the whole thing off as something someone might do while troubleshooting their network. What a stupid argument. The point is that he did it to avoid detection after he knew for a fact that they were trying to stop him. Mike can't be honest about any of this, though, because Mike is a fundamentally dishonest person.

Re: Re: Re: Changing IP and MAC address is not wrong

Tell me, do you know anything at all about computers? I do, have been working with them for 20 years now, I built one. Changing IP addresses and MACs is a perfectly legitimate function of a computer. What if Swartz was plugged in with an ethernet cable, and yanked it out? I myself have changed IP addresses when my network connection dropped (no, I did not think anybody was trying "to stop me". Its a perfectly legitimate action to do in response to a network error). Would you then condemn that action?

No, what you are doing is trying to attack Mike with anything you can grab onto. You parse through what he writes, see something that looks even the least bit controversial, and then go apeshit over it, without bothering to put any logic or reason into whatever it is you're saying. Swartz himself and what he did or did not do means nothing to you: only what Mike writes about him.

Re: Re: Re: Re: Changing IP and MAC address is not wrong

No one, not even his mentor Lessig believes that Swartz was somehow unaware he was being deliberately thwarted. It is only desperate people like you who can't admit it because it would reflect badly on Swartz who was obviously and knowingly engaged in deliberate wrongdoing.

Re: Re: Re: Re: Re: Re: Changing IP and MAC address is not wrong

Re: Re: Re: Re: Re: Re: Re: Changing IP and MAC address is not wrong

Yes, the law being the CFAA, the very same law that the US government is using to define any violation of a TOS as being against this law.
And his conduct? Again...downloading taxpayer-funded research documents. I've been reading up on this case, I haven't seen anything that should have gotten him charged with anything worse than trespassing.

Re: Re: Re: Changing IP and MAC address is not wrong

The point is that he did it to avoid detection after he knew for a fact that they were trying to stop him.

How are you equating "trying to stop him" with "illegal activity?"

They were simply trying to stop the large volume being downloaded. They were not revoking his rights to be connected to the network. That's kind of hard do to when there is no authorization actually given in the first place.

Re: Re: Re: Re: Changing IP and MAC address is not wrong

Re: Re: Re: Re: Re: Changing IP and MAC address is not wrong

"so why commit suicide for changing your IP and MAC address ??"

Of all the idiotic responses you could've given...
He didn't commit suicide because he changed his IP and MAC. The most likely reason he committed suicide is because the US government went after him and threatened him with jail time for at worst a misdemeanour. They threatened him with decades in jail for copying research documents and he got scared.
At absolute worst, changing your IP and MAC addresses to deliberately get around network management policies IS NOT A CRIME. It may or may not be against the TOS (depends on the specific TOS).
You could be right in saying he knew he shouldn't have been logged in then. But, there's a huge gap from that to why he was being threatened with decades in jail.

Re: Re: Re: Re: Re: Re: Changing IP and MAC address is not wrong

At absolute worst, changing your IP and MAC addresses to deliberately get around network management policies IS NOT A CRIME. It may or may not be against the TOS (depends on the specific TOS).

If it's such a slam-dunk, why didn't he go to trial? The answer, that any reasonable person would conclude is that he may well have violated the CFAA. He had four choices: trial with uncertain outcome (though according to legal professionals on TD, no crime was committed); six months in Club Fed watching tv and lifting weights; seek asylum and move in with Julian Assange or hanging himself. Seems like he made the worst choice available.

Look, it's really simple. There is the law and if you break that law you go to prison. You will probably be raped but then you should have thought of that before you broke the law.

You might even be innocent but if they think you broke their laws you go to prison. You will probably be raped but then you should have thought of that before you didn't break the law that they are charging you for breaking.

Because, innocent or guilty, going to trial in a case like this is almost certainly a life-ruining option.

I'd humbly suggest that the option he chose- suicide, was a far greater life-ruining option (for him and those who loved him) than a brief stint in prison.

Again, Swartz was acting on his earlier written manifesto. He believes that knowledge should be free- irregardless or ownership or intellectual property (or other) laws. That's fine. He believed it and acted on his beliefs. However, he didn't think out the potential consequences nor did he appear to be willing to accept them. Look at the Plowshares movement. They break in to US military nuclear facilities, engage in minor vandalism, pour their own blood on weapon components. They have great fidelity to their beliefs, understand that they will (and usually do) go to prison. Then they get out and do it all over. Swartz was down with the acts of disobedience, but apparently not up to the consequences. A lesson for some of the shithouse anarchists on Techdirt.

I'd humbly suggest that the option he chose- suicide, was a far greater life-ruining option (for him and those who loved him) than a brief stint in prison

No argument from me about the suicide, although clearly his suicide was the result of more than just his legal problems.

However, I disagree with the characterization of the prison time as a "brief stint". That's trivializing the fact that six months in prison is a huge penalty. Also, that he would reasonably have believed that he faced far more than 6 months, since he was being threatened with years in order to coerce a guilty plea.

Swartz was down with the acts of disobedience, but apparently not up to the consequences.

It's hard to see how the legal repercussions he received could have been foreseen. From all outward appearances (the law as written, the terms of service, etc.), the worst he would have faced was a trespassing charge. A trespassing charge would not have resulted in a felony conviction.

He may very well have been up to facing conviction on such a charge. The multiple felony counts, combined with the threat of years in prison, was completely unexpected. Fighting them is not opposed to the principles of civil disobedience.

Swartz was down with the acts of disobedience, but apparently not up to the consequences.

This is where I think you take things too far in your firm view that the law is above everything else, AJ.

Nobody, and I mean nobody without intense knowledge of the abuses of the CFAA, would think, before the fact, that what Arron did would equate to 30 some odd years of hard time in Federal prison. A simple violation of copyright and minor misdemeanor charges would have been the reasonable expectation here.

Your incessant pushing of the "Law" as a god above all others truly scares me.

Re: Re: Re: Re: Re: Re: Re: Changing IP and MAC address is not wrong

"If it's such a slam-dunk, why didn't he go to trial? The answer, that any reasonable person would conclude is that he may well have violated the CFAA."

Because, being the smart person that he was, he had more than likely read up on how broadly worded the CFAA is and how the US government misuses to go against anyone whom they call a hacker, even when doing things that are not hacking. Remember, this is in the UNITED STATES OF AMERICA, the country with the highest prison population percentage of its full population. He more than likely knew that he would be found guilty anyway, regardless of the fact he was more than likely innocent of any crime.

Now I'm confused. In post #209, you say: I've been reading up on this case, I haven't seen anything that should have gotten him charged with anything worse than trespassing.

Then in post #210 you say: Because, being the smart person that he was, he had more than likely read up on how broadly worded the CFAA is and how the US government misuses to go against anyone whom they call a hacker, even when doing things that are not hacking.

So either he was not guilty of violating the CFAA as you assert in #209 or you believe that he was as you acknowledge in #210.

So which is it? I have no problem with you making either argument, but I do have a huge objection trying to argue both sides at the same time.

Because every single person on this planet thinks of things like being charged with the CFAA as "Oh, that won't happen to me". He may or may not have known about the CFAA, but if he had, he wouldn't have thought that the government would have gone ape-shit over it with him.
I didn't acknowledge in 210 that he was guilty, I said that the law is so badly worded that the US government can use it to go after anyone. For me to say he was guilty in 210, is to say he was guilty of violating the law after switching from Wifi to ethernet cable.

Not speaking for Rikuo, of course, but this case lends itself to confusing two different things: what is right and what is the law. I find myself getting tripped up between the two here frequently.

What Aaron was being charged with was ridiculous, and according to common sense, decency, and justice, the charges were dramatically overblown and morally wrong across the board.

The charges may comport with the law, but that just highlights how wrong and unjust the law is. And that is the whole point.

In discussing this whole thing, it's easy to confuse the two things. When I say "he didn't do anything wrong," I mean he wasn't acting immorally or unethically. I don't mean he wasn't acting illegally. But the law here is simply wrong. Not just a little wrong, but massively, horribly wrong.

That's the problem with AJ. He only ever considers the wording of the law, never the spirit. Yes, he may be right that Aaron violated the law here, given how its written, but that's the end point for AJ. He doesn't consider whether the law is just, unjust, moral or immoral.
So Average_Joe, shut the fuck up about saying he violated the law. He may have, but that's not what's being discussed here. What we're discussing is the overblown reaction to what Swartz did, and people like you who don't bat at an eye at him being threatened with decades in prison.

"He doesn't consider whether the law is just, unjust, moral or immoral. "

I noticed this too. He can argue with a profound sense of calm because the law is the law, and according to him "morals have no place amongst the law."

Yet, we have representatives in the government that work to create laws beneficial to the people. If members of the public see imbalances (moral or otherwise) in the law and speak out about it in a public forum like Techdirt, they're labeled as fanatics and idiots.

This is also something I noticed in the Volokh discussion. There were several comments made by obviously lawyers or law students that basically said that tech people shouldn't be commenting on the site because with the law tech people were "in over their heads". No substantive argument. Only, as I put it there, "professional elitism". A tool of the troll.

Although I don't subscribe to the whole "you are not a lawyer so you cannot comment on the law" silliness (or even the opposite - "you're not a geek, so don't comment on tech stuff"), it has been my observation that some of the law scholars really don't understand the technology and then attempt to oversimplify it and thereby leave out some very important nuances.

My comment was that you think that people who interpret and debate for a living (ie lawyers) would know that resorting to personal attacks never makes your argument stronger and on the Internet, it just makes you look like a troll.

Your claim is still confusing. You seem to be suggesting he did some major damage to the value of the database, or you're just mentioning the dollar value of the database to emphasize that there's terrible people who wish to see academic informationf low freely.

It's mentioned in the complaint and confirmed in their tax filings which are public.

And there again, so what? If JSTOR had a problem with this, they could have filed a civil infringement case against MIT and/or Swartz. They didn't. They also repeatedly asked the DOJ not to prosecute this case.

When even your "victim" wasn't interested in pushing this to the level it went to, I'm not sure how you can continue to justify the actions of the DOJ. It's simply mind boggling that you cannot see the forest for the trees.

Many people here don't see any problem with misappropriating and "liberating" a database the costs tens of millions of dollars to produce. That's a lack of morality, IMO.

That is because, as I've stated to you before, you can't see past the letter of the law. Broaden your horizons, for Christ's sake.

If "liberating" that database eventually led to thousands of human lives being saved (not saying that's the case here at all, btw), then the initial act is moral one, regardless if Letter-of-the-Law-Man disagrees.

You mean the tens of millions of dollars that we the public paid? You mean liberating these documents from an entity that one could reasonably argue had "liberated" them from the public's ownership in the first place?

JSTOR didn't pay a single dime to produce these documents. They're taking what we already paid for, locking them away, and charging for people to look at them.

The morality of the situation is not quite as clear cut as you seem to believe.

Many people here don't see any problem with misappropriating and "liberating" a database the costs tens of millions of dollars to produce. That's a lack of morality, IMO.

Holy fuck. I just realized what you are tyring to do here, AJ. You are trying to legally equate copyright infringement to stealing by using the CFAA. That is disingenuous, even for you.

This may have been a case of copyright infringement, I don't dispute that. But it's not "stealing" whatsoever. Aaron was given permission to unlimited downloads as an end user of MIT's wide open network and he used those rights. The argument about JSTOR/MIT trying to stop him as evidence of wrong doing falls flat. You cannot revoke the rights to be connected to a network that doesn't require any authorization in the first place.

I think you are pissed that Aaron actually found a valid legal loophole in this matter and that is what has your dander up.

Not to be rude to you Gwiz, but it seriously took you that long to figure out that's what AJ's angle was? He's always conflated copyright infringement with theft.
Of course, let's not talk about the fact that that is him being a hypocrite whenever he's trumpeting the letter of the law and the letter of the law says copyright infringement is not theft.

Not to be rude to you Gwiz, but it seriously took you that long to figure out that's what AJ's angle was? He's always conflated copyright infringement with theft.
Of course, let's not talk about the fact that that is him being a hypocrite whenever he's trumpeting the letter of the law and the letter of the law says copyright infringement is not theft.

And the sockpuppets pile in. I've explicitly stated more than once that copyright is not the issue here. I'm not conflating anything.

It may seem unfair that much of the fruit of the compiler's labor may be used by others without compensation. As Justice Brennan has correctly observed, however, this is not "some unforeseen byproduct of a statutory scheme." Harper & Row, 471 U.S., at 589 (dissenting opinion). It is, rather, "the essence of copyright," ibid. and a constitutional requirement. The primary objective of copyright is not to reward the labor of authors, but "[t]o promote the Progress of Science and useful Arts." Art. I, 8, cl. 8. Accord, Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975). To this end, copyright assures authors the right to their original [499 U.S. 340, 350] expression, but encourages others to build freely upon the ideas and information conveyed by a work. Harper & Row, supra, at 556-557. This principle, known as the idea/expression or fact/expression dichotomy, applies to all works of authorship. As applied to a factual compilation, assuming the absence of original written expression, only the compiler's selection and arrangement may be protected; the raw facts may be copied at will. This result is neither unfair nor unfortunate. It is the means by which copyright advances the progress of science and art.

Yes, that's a copyright argument, but it says that the data may be "copied at will." If your argument were accurate, then that would render the ruling in Feist meaningless, since Rural could have just come back with the claim that it had "spent millions" on compiling its database, and that Feist had "misappropriated" it as you claim.

In fact, the court explicitly rejects the idea that the amount of effort that went into compiling a database matters. It explicitly rejects the argument that "sweat of the brow" matters in determining such things. Yet you are arguing precisely the opposite.

Exactly. Even had he downloaded all of the content and distributed it to P2P file sharing services the added value of indexing and searchability that JSTOR spent so much money on in building there aggregate collection would not have been taken. Exclusivity is the ONLY part of their competitive advantage that they would have lost and THAT is the very issue copyright addresses.

Exactly. Even had he downloaded all of the content and distributed it to P2P file sharing services the added value of indexing and searchability that JSTOR spent so much money on in building there aggregate collection would not have been taken. Exclusivity is the ONLY part of their competitive advantage that they would have lost and THAT is the very issue copyright addresses.

The journals and articles themselves are valuable even without the value added by JSTOR. Swartz misappropriated that value even if he didn't misappropriate some of the value that JSTOR added.

The amount of effort that went into making the database in Feist didn't matter because the constitutional threshold issue of originality had not been met. Labor alone is insufficient to claim copyright protection. That labor must produce something original. It's not a refutation of Lockean notions, though, since there still must be labor first to get property right later. Feist just adds an originality element to the copyrightability analysis.

But that's not the issue here. The issue here is whether something of value was fraudulently taken. The party in Feist acquired the database legitimately, hence fraud was not the issue there. There was no false pretenses in Feist as there are here. The database in Feist was given out freely while the one here is licensed. The statute at issue is here: http://www.law.cornell.edu/uscode/text/18/1343 As Kerr notes, "The false pretenses are provided by the false identification and spoofing of Swartz’ IP address and MAC address. Swartz was trying to trick JSTOR into giving him access to their database after they had specifically tried their best to ban him from doing so." http://www.volokh.com/2013/01/14/aaron-swartz-charges/

" As Kerr notes, "The false pretenses are provided by the false identification and spoofing of Swartz’ IP address and MAC address. Swartz was trying to trick JSTOR into giving him access to their database after they had specifically tried their best to ban him from doing so."

If their best is IP and MAC address blocking...then their IT team needs to be fired. Out of a cannon. Towards a brick wall. Because that is not the best thing you can do to protect your network.

And if this is the best that the IT department at MIT - arguably the most advanced and prestigious TECHNOLOGY institution in the nation - can come up with, in the future we are truly screwed. What a sad statement that would make about our educational system in this country. However, the real sad statement here is that the DOJ expects us to believe that this load of horseshit is actually true.

And if this is the best that the IT department at MIT - arguably the most advanced and prestigious TECHNOLOGY institution in the nation - can come up with, in the future we are truly screwed.

I respectfully disagree. To be honest, I feel that MIT is getting screwed in all of this too.

I respect their vision of a truly open internet and deeply appreciate their commitment to unfettered network access. It saddens me to think this affair may cause them to rethink their commitment to such things.

It's understandable though, with the legal atmosphere that we live in, it's getting harder to stand as a beacon of openness as the waves of liability crash against you.

Oh I do not disagree with you on this point. The key word in that statement is "if". Do not believe for one moment that I believe that I think that this was "the best that the IT department could come up with" - hence my second comment about the DOJ expecting that we are to believe that it was. As I asserted earlier, the steps they took could only be interpreted by any reasonable person as "normal bandwidth and resource mitigation procedures."

And that gets back to my original argument. How exactly did the efforts that they made produce something original that was taken?

Also the actions they took amount to nothing more than bandwidth and resource management or would reasonably be perceived as such. At no time prior does there appear to be any attempt to communicate the intention that he was no longer permitted to access it. Had they asked a court for a temporary restraining order that was then delivered to him, that would have qualified. But they didn't. The DOJ concocted this theory afterwards to support felony charges.

And that gets back to my original argument. How exactly did the efforts that they made produce something original that was taken?

Also the actions they took amount to nothing more than bandwidth and resource management or would reasonably be perceived as such. At no time prior does there appear to be any attempt to communicate the intention that he was no longer permitted to access it. Had they asked a court for a temporary restraining order that was then delivered to him, that would have qualified. But they didn't. The DOJ concocted this theory afterwards to support felony charges.

If you are using the fact that he changed his IP address, his MAC address or even the fact that he connected via a CAT5 connection after JSTOR/MIT attempted to stop the large volume downloads, then that doesn't hold water for me. All of those things were implicitly permitted on MIT's network prior to this incident happening. Permission to do those things was already given. He was not doing anything under false pretenses.

Also, just because JSTOR/MIT attempted to stop him doesn't negate the fact that he had permission for unlimited downloads, does it?

Seriously, Google would have done it for free. These guys aren't very smart capitalists. That's the whole point of doing science, right? Not to make the world a better place through the sharing of knowledge but to make money for a few people, right?

But that's not the issue here. The issue here is whether something of value was fraudulently taken. The party in Feist acquired the database legitimately, hence fraud was not the issue there. There was no false pretenses in Feist as there are here. The database in Feist was given out freely while the one here is licensed

How are you claiming that Aaron obtained the content fraudulently? End users of MIT's network have a carte blanche license for unlimited downloads of JSTOR docs and he was using MIT's network within the boundaries that MIT themselves set forth. Where is the fraudulent part?

Additionally, on the licensing part, sure, MIT licensed access from JSTOR. But that license is between JSTOR and MIT. Due to the open nature and lack of TOS on MIT's network, I fail to see how that license extends to the end users in this case and how it would be applicable anyways.

But that's not the issue here. The issue here is whether something of value was fraudulently taken. The party in Feist acquired the database legitimately, hence fraud was not the issue there. There was no false pretenses in Feist as there are here. The database in Feist was given out freely while the one here is licensed.

I believe it is quite reasonable to argue that every one of your statements concerning Swartz is wrong above. Nothing was "fraudulently" taken. MIT had an unlimited license with JSTOR, such that users could download the content. They also left their network open. So, yes, the database here was "given out freely."

As Kerr notes, "The false pretenses are provided by the false identification and spoofing of Swartz’ IP address and MAC address. Swartz was trying to trick JSTOR into giving him access to their database after they had specifically tried their best to ban him from doing so."

That is an inaccurate explanation of what Swartz did. As we've explained repeatedly, due to the way that MIT's network was set up, and the way you do *NORMAL TROUBLESHOOTING* it is unclear that Swartz did anything involving "false pretenses."

The issue here is that people like him just want to find any pretext to smear the deceased guy because he did things for society that go directly against his interests. However, since there's no reasonable points that can be used to smear Swartz he and the other MAFIAA minions will just focus on these small things and make circular arguments that do not stand to the slightest scrutiny.

The positive part of this is that he generated enlightening responses. Other than that he's plain despicable.

I appreciate the response, but I must note that you completely dropped your "database rights" argument--and rightfully so. That argument was really naive. You really don't understand much about how property works. That database is their private property. I'm not talking about copyright, I'm talking about the actually ones and zeroes that comprise their database. For you to pretend like it's strange that something they spend tens of millions of dollars licensing and collating shows an incredible naivete on your part. Who do you think owns it?

It's just like how the Techdirt database belongs to you (or your corporation--I don't know how you have things set up). It matters not that some parts of it are copyrighted (like my comment here) and some parts are not (like the articles you claim to have dedicated to the public domain even though you're too lazy to actually put a notice on each article). Your database is your private property, irrespective of copyright law. You can limit access to it, and if someone bypasses your technical limitations, that's hacking. The copyright is immaterial.

As far as the false pretenses go, I think it's clear enough that spoofing his MAC address and hard wiring in the closet in order to evade the actions that were being done to stop him from scraping the database show that he acted fraudulently. I understand that you'll adopt any plausible sounding argument that relieves Swartz of any wrongdoing (working backwards as you often do). I think that if you were being honest--a feat that I'm not sure you are able to do at times--then you would admit that it's fundamentally wrong to take a database that costs and is worth tens of millions of dollars as he did.

I have Westlaw access. Do you think it's perfectly OK for me to use a script to bypass their technical restrictions so that I can download the entire database? Of course that's not OK. Why you can't just admit such a simple and obvious thing is really amazing. It's stuff like this that causes people like me to see you as an extremist zealot who is unwilling to give even an obvious inch.

I keep seeing the word "database" bandied around here as if that is what was being downloaded. JSTOR is a central repository for numerous journals, books, articles, etc. Obviously, there is a "database" that functions like the "card catalogues" that used to be maintained by libraries. Such a library "database" enabled one to find the location of specific books, journals, articles, etc., thus enabling one to peruse the library's collection to secure them.

The individual here, to my way of thinking, was using the "card catalogue" to find everything in the JSTOR library, and then attempting to download for eventual public distribution the entire contents of JSTOR's entire library, a library that he darn well knew was never intended to be copied en masse and published to the world.

JSTOR exists to assist its users to perform research. The individual was not by any measure using it for the purpose of conducting research. Quite the contrary.

I keep seeing the word "database" bandied around here as if that is what was being downloaded.

You're right, Swartz downloaded articles. JSTOR has those articles because it spends tens of millions of dollars licensing them. JSTOR in turn adds value to the articles by collating, indexing, cross-referencing and such, and then institutions pay JSTOR millions for access to the service.

The individual here, to my way of thinking, was using the "card catalogue" to find everything in the JSTOR library, and then attempting to download for eventual public distribution the entire contents of JSTOR's entire library...

We do not know that Aaron planned to release anything to the public. That is pure speculation.

...a library that he darn well knew was never intended to be copied en masse and published to the world.

And perhaps that was injustice he was trying to expose. Should this all knowledge really be locked up in the first place?

JSTOR exists to assist its users to perform research. The individual was not by any measure using it for the purpose of conducting research. Quite the contrary.

That's immaterial. He was doing what he had permission to do. Nothing more, nothing less.

You don't like discussing the merits with me or anyone else because you come out looking like a fool. It amazes me how terrible your arguments are when you actually do bother to make them. I'm not surprised you're so reticent to actually dive into a nuanced discussion. Your specialty seems to be throwing out a bunch of FUD to see what sticks. Actually hunkering down and running through the specifics isn't your strong suit. It's a shame. The upside is that a lot of what I used to attribute to your being evil is actually better attributed to your naivete. Run away from this discussion like you do every single other one where you get called out for being a fool and where you realize that you can't defend your silly position. You and I both know that you care about perception more than truth. You're not running this blog to get to the truth of anything. You're running it to spread your agenda--an agenda that you're too scared to defend against the slightest challenge. I'm sorry you don't actually have the goods. My mistake was in thinking that perhaps you did, but now I realize that you really don't. You have some good ideas, but that's about the nicest thing I can say about you.

You really need to get over this weird obsession you have with Mike. If chooses not to engage you because he thinks you're being childish, that's his prerogative. Grow up and get the fuck over it already.

Your database is your private property, irrespective of copyright law. You can limit access to it, and if someone bypasses your technical limitations, that's hacking. The copyright is immaterial.

And once again, what was taken was the copyrighted content, not the database itself. Why are you missing that important part?

As far as the false pretenses go, I think it's clear enough that spoofing his MAC address and hard wiring in the closet in order to evade the actions that were being done to stop him from scraping the database show that he acted fraudulently.

No false pretenses. No fraudulent acts. Aaron had implicit permission to do everything he did. It's you who is working backwards from the prosecution's version and refusing to see the nuances.

I have Westlaw access. Do you think it's perfectly OK for me to use a script to bypass their technical restrictions so that I can download the entire database?

If you have permission for unlimited downloads - then yes, absolutely. Using a script or paging through manually, that makes zero difference. Not sure why you are hung up on the "using script" part.

Let me give this another try. I think you're conflating the copy with the copyright. The database that Rural compiled was Rural's property. I'm talking about the physical copy itself, not the underlying copyright. It could do with that property as it pleased. It chose to print out phone books to distribute to the public. The Court said that Feist was free to copy the information in the phone book because it wasn't protected by copyright. And fraud never came up because Feist didn't fraudulently obtain his copy. Had Rural decided to put their phone book behind a paywall, and someone used fraud to obtain a copy, that would be fraud but not copyright infringement. It couldn't be infringement because the information was not copyrighted, but it could still be fraud.

So getting to Swartz, the database itself is JSTOR's property. The actual ones and zeroes on their servers are owned by them. Some of the materials are copyrighted, and some are not, but that's a different issue than the ownership of the information itself. They own those particular copies. Swartz's copying is wire fraud since he acquired the copies via fraudulent acts. That copying could also support copyright charges for the materials that were copyrighted, but the government didn't pursue that theory. You're misreading Feist though to indicate that people don't own their copies if the underlying works is not copyrighted. That's not what the Court said, nor does that necessarily apply here since lots if not most of the stuff on JSTOR is in fact copyrighted.

Dictionaries are covered under copyright because of the creative elements added by the publishers - format, actual wording of definitions, which words to include, etc.

The journals in JSTOR would also be copyrighted or in the public domain. JSTOR's presentation of the journals could also be copyrighted. I have maintained that what Aaron did could be copyright infringement. (although a strong defense could be made against infringement, since he had permission for unlimited downloads and his intent to distribute remains unclear).

The thing is though, this isn't a copyright case. The government choose to take matters into their own hands and charge him with wire fraud and violations of the CFAA by claiming he took something of value electronically.

The question is what they are basing that value on? If it's the copyrighted content, that falls under copyright law. If it's JSTOR's "sweat of the brow", then the argument is that Aaron didn't take that, he only took the copyright material. It's unclear if there is any basis for the "sweat of the brow" argument anyways since the US doesn't recognize "database rights".

The question is what they are basing that value on? If it's the copyrighted content, that falls under copyright law. If it's JSTOR's "sweat of the brow", then the argument is that Aaron didn't take that, he only took the copyright material. It's unclear if there is any basis for the "sweat of the brow" argument anyways since the US doesn't recognize "database rights".

The documents he took were valuable--that's why he took them. He obtained something of value, the documents, via fraud over the wires. Hence wire fraud. That same downloading could also have sustained criminal copyright infringement charges (but the prosecutors did not bring these charges). Mike was trying to bring "sweat of the brow" and Feist into this to make the argument that JSTOR doesn't own its own database, but that argument confuses the copy from the copyright. JSTOR does own their copies, even if they hold none of the copyrights. Accessing those documents under false pretenses, such as bypassing technical measures, is fraud. If the materials taken were copyrighted, it's also infringement. Hope that helps.

First off, his intent is only supposition and will now unfortunately remain so. You really can't say that's why he took them.

He obtained something of value, the documents, via fraud over the wires.

He was obtaining something of value with permission. At what point did that permission terminate?

That same downloading could also have sustained criminal copyright infringement charges (but the prosecutors did not bring these charges)

Yes. Any insights as to why the prosecution took this route? Better headlines or something?

Mike was trying to bring "sweat of the brow" and Feist into this to make the argument that JSTOR doesn't own its own database, but that argument confuses the copy from the copyright. JSTOR does own their copies, even if they hold none of the copyrights.

Now correct me if am wrong here, but aren't the remedies for discretions such as taking something copyrighted covered under copyright law and wouldn't that be the proper venue?

We don't prosecute copyright infringement cases as theft for a reason. They are different things and are covered under completely different statutes, right?

Accessing those documents under false pretenses, such as bypassing technical measures, is fraud.

I've explained why I don't think it was fraud. Changing your MAC and IP addresses were perfectly legitimate activities on MIT's network prior to this affair. Implicit permission was given to do those things.

As for connecting via hardwire, even that doesn't seem like something MIT restricts that much. I don't know for sure, but would guess dorm rooms and other places have network jacks available.

Add on to of all that, Aaron technically had permission for unlimited downloads as an end user of MIT's network. Where exactly, in all of this, did that permission get revoked?

Breaking into the closet (if that's even the case) could be trespassing. Incidentally, isn't that the only thing the local PD charged him with?

He didn't have unlimited downloads. His downloading ability was limited contractually and technically. He bypassed the technical restrictions with the code that he ran, with his spoofing his MAC address, and with his hard wiring in the closet. He was not obtaining something of value with permission. Both MIT and JSTOR were doing everything they could to stop him. This really isn't hard.

He didn't have unlimited downloads. His downloading ability was limited contractually and technically.

Like I asked, where and when was the permission revolked? Just because they tried to stop the heavy downloading? Where was this contract you claim exists broken?

Also, how are you claiming that Aaron was limited contractually on a connection that required no authorization and had no TOS? How does the contract between JSTOR and MIT magically extend to the end user?

He was not obtaining something of value with permission. Both MIT and JSTOR were doing everything they could to stop him.

Yes, They where trying to stop the heavy downloading - no argument there. I fail to see how that voided the end user's permission in any way. It's like a supermarket offering free samples that 10,000 people show up to get. It's a failure on JSTOR and/or MIT's part, not a breaking of the contract on the end user's part.

This really isn't hard.

You keep saying this and you are wrong. Nothing is a simple as your letter-of-the-law view. It's all the nuances of this
case that I'm an trying to understand.

When he logged onto the wireless network, he had to agree to the schools terms of service. That's where he used his "Gary Host" (ghost, get it?) credentials. And to use JSTOR, he had to agree to those terms of service as well. Those terms of service explicitly say that you can't scrape the database.

In addition to agreeing to any Content-Specific Terms and Conditions of Use, you agree that you will not: ***

(c) attempt to override, circumvent, or disable any encryption features or software protections employed in the JSTOR Platform;

(d) undertake any activity such as computer programs that automatically download or export Content, commonly known as web robots, spiders, crawlers, wanderers or accelerators that may interfere with, disrupt or otherwise burden the JSTOR server(s) or any third-party server(s) being used or accessed in connection with JSTOR

He agreed to those terms and then violated them. He knew they had revoked his own use privileges by blocking his personal MAC address and he spoofed a new one to circumvent the restriction. This really isn't hard. He knew that he didn't have permission to do what he did, and he did it anyway.

When he logged onto the wireless network, he had to agree to the schools terms of service. That's where he used his "Gary Host" (ghost, get it?) credentials. And to use JSTOR, he had to agree to those terms of service as well. Those terms of service explicitly say that you can't scrape the database.

I was under the impression that the MIT's network didn't have a clickwrap TOS - so how enforceable their TOS really?

As for JSTOR's TOS - was that a clickwrap? Were MIT's end users even presented with it since MIT had a license for unlimited downloads? Isn't your link for JSTOR access from the general internet?

I understand that there may be contractual disputes in this thing, but that is civil law, not criminal isn't it?

I really just don't understand how violating a TOS escalates to such extreme criminal charges, just because it was done with a computer. That's insane to me. It's like prosecuting the 10,000 customers in my supermarket scenario, even though the supermarket forgot to add the legaleze tagline of "while supplies last".

Also, you keep pointing me to the indictment like it's the gospel truth. It's not. It's only one side of the story.

As I said, he agreed to MIT's terms of service when he set up guest access, and then he agreed to JSTOR's terms of service when he accessed that database. I use JSTOR frequently, and I've agreed to those same conditions. Whether or not violating TOS is itself criminal is something the courts are dealing with now. He did not do this in a circuit where the courts have said such violations are not criminal. Regardless, his actions are fraudulent even without the TOS violations--which is Prof. Kerr's point. All circuits agree that bypassing technical restrictions (i.e., hacking) is fraudulent (and thus criminal). The TOS violations might also be criminal. I understand that the indictment is one-sided, but I haven't heard anyone deny or refute the relevant facts therein. Swartz was caught red-handed, so it's difficult to deny.

I do hear your arguments and appreciate the debate we've had, but I am done for now. I've wasted too much time dwelling on this anyways.

I leave this debate with pretty much the same feeling that I had coming into it - that what Aaron did wasn't "inherently wrong" in my mind what so ever.

Taking into consideration Aaron's nature and values, the actual "crimes" and the DOJ's over-inflation of situation for whatever reason, it still doesn't sit well with me at all. But that is my problem, not yours.

So in your mind, him bypassing their general security measures and evading their attempts to stop him specifically so he could obtain millions of dollars worth of documents is not "inherently wrong." I strongly disagree, naturally. I respect other people's property rights, and I'm glad when punks who think they can violate other people's rights get caught and punished. But that's just me.

I respect other people's property rights, and I'm glad when punks who think they can violate other people's rights get caught and punished. But that's just me.

Ok, I guess I wasn't completly done. :0

From a narrow letter-of-the-law point of view I can see how you would view it as such. I also try look at it from society's point of view too. Should such knowledge as research journals be locked up in such a fashion in the first place. I don't believe they should be.

I would have viewed Rosa Park's actions in the same light, although technically illegal. I would have viewed the jury nullifications of the Fugitive Slave Act or of alcohol control laws during Prohibition the same way, even though it was the law of the land at the time.

It's not always about the letter-of-the-law, it is also about what is righteous, just and beneficial to society as a whole. Just my 2¢ worth.

I agree that we should do what benefits society, and I think it's abundantly clear that the copyright system does exactly that. You can focus on how works are "locked up," but I think you're missing the economic incentives that help to create the valuable works in the first place. And you're missing the economic incentive that gets JSTOR to spend the time, money, and energy to scan and collate and make the database more usable. Taking that database and "liberating" it would obviously better disseminate those works, but it would be at the expense of those who rightfully expect a return for the investment they put in creating those works in the first place. Nothings stopping people from working outside of the copyright system, and increasingly more people are doing just that. But I think it's important to respect people's wishes as to their content, and it's not right and downright undemocratic to do what Swartz did. There's working to implement change = good. And then there's taking things into your own hands and shitting on other people's rights = bad.

Well, in talking about economic incentives for creating academic journals, I think you are bit off-base there. It's pretty much historically been a one-sided affair with publishers screwing over the actual authors at every chance they get. Not so sure your imagined high ground is really that high in real life on this one.

Also, you know I'm not all that convinced the copyright system really does benefit society as much as you think it does, but that's a different discussion.

And a lot of academic journal authors are now releasing their works (regardless of the publisher's wishes) to the public as a result of this affair. So some good may still come of it all anyways.

The bottom line is that the copyright regime has brought us this incredibly wonderful and useful JSTOR database. The "free" regime has not. Wake me up when "free" actually proves itself, but for now copyright is clearly winning.

The bottom line is that the copyright regime has brought us this incredibly wonderful and useful JSTOR database.

Umm. No. The requirement for scholars to be published in order to be accredited has created the content that JSTOR uses. Even if it means they have to pay money to be published and/or have to turn the copyright over to the publishers. That's copyright being used to exploit authors and make a profit off of their hard work more than anything else really.

The problem lies with the fact that publishers have had the upper hand for two centuries and have bilked the copyrights from the authors all along the way. Do you really think the publishers will give up those copyrights, even if it's for the betterment of society? Where exactly is the "promote the Progress of Science and useful Arts" in there?

Let me point you to the text in the indictment since you seem unable to find it.

Page 2: "JSTOR authorizes users to download a limited number of journal articles at a time. Before being given access to JSTOR's digital archive, each user must agree and acknowledge that they cannot download or export content from JSTOR's computer servers with automated computer programs such as web roots, spiders, and scrapers. JSTOR also uses computerized measures to prevent users from downloading an unauthorized number of articles using automated techniques."

Page 2-3: "MIT authorized guests to use its network for no more than fourteen days per year, and required all users to use the network to support MIT's research, education, and administrative activities, or at least to not interfere with these activities; to maintain the system's security and conform to applicable laws, including copyright laws; and to conform with rules imposed by any networks to which users connected through MIT's system. These rules explicitly notified users that violations could lead to state or federal prosecution. Guest users of the MIT network agreed to be bound by the same rules that applied to students, faculty, and employees."

No I think he's dancing around the semantics of the word "property" since the court in Seidlitz said that it had to be property for fraud to exist. Claiming that because the copy is someone's then it is property. Attempting to claim that because they "worked on it" to change it it's the work that makes it theirs rather than the fact that it becomes something unique.

Had Aaron been trying to download the ENTIRE DATABASE (ie. structure, indexing and all) he would have a point but Aaron was only downloading the information which is different. JSTORE's competitive advantage was in the indexing from a single source. That was not taken or damaged in any way. The only thing that would have been damaged is exclusivity which returns you to the issue of copyright.

Had Aaron been trying to download the ENTIRE DATABASE (ie. structure, indexing and all) he would have a point but Aaron was only downloading the information which is different. JSTORE's competitive advantage was in the indexing from a single source. That was not taken or damaged in any way. The only thing that would have been damaged is exclusivity which returns you to the issue of copyright.

Nonsense. You're paradoxically arguing that what he took was of no value, when obviously he took what he did because it was valuable.

No I'm not saying that it had NO value. But the value that was subject to damage as referenced in Seidlitz was the indexing and searchability as that is the value added by the work that they put in. The value of the content itself falls under copyright law.

No I think he's dancing around the semantics of the word "property" since the court in Seidlitz said that it had to be property for fraud to exist. Claiming that because the copy is someone's then it is property. Attempting to claim that because they "worked on it" to change it it's the work that makes it theirs rather than the fact that it becomes something unique.

It's not dancing on semantics. JSTOR spends millions licensing the content, scanning journals, cross-referencing materials, etc. That effort makes the database especially valuable, and that's why institutions pay thousands of dollars a year for access. They are paying for that value that JSTOR collated and created. That value is rightfully JSTOR's property right.

Morality? NOW you want to debate morality? We aren't the ones claiming that Aaron willingly and knowingly broke a law designed to address BANK FRAUD that is being twisted such that standard networking troubleshooting techniques that used to break phantom unstated TOS policies qualify as multiple felony violations such that it is perfectly reasonable for the mighty DOJ to literally badger the poor boy to the point that his depression makes him suicidal.

We also aren't the ones that argue it's ok for a large company to take away a 4 year old girl's only means of communication in the name of corporate greed. (And yes I know they settled it so she ultimately didn't lose it, but MORAL people would never have let that happen in the first place and yes, I know that this one is over but it STILL pisses me off.)

So don't try to claim moral high ground here. Mike's and the other authors articles are about benefiting the public not taking from them.

Morality? NOW you want to debate morality? We aren't the ones claiming that Aaron willingly and knowingly broke a law designed to address BANK FRAUD that is being twisted such that standard networking troubleshooting techniques that used to break phantom unstated TOS policies qualify as multiple felony violations such that it is perfectly reasonable for the mighty DOJ to literally badger the poor boy to the point that his depression makes him suicidal.

We also aren't the ones that argue it's ok for a large company to take away a 4 year old girl's only means of communication in the name of corporate greed. (And yes I know they settled it so she ultimately didn't lose it, but MORAL people would never have let that happen in the first place and yes, I know that this one is over but it STILL pisses me off.)

So don't try to claim moral high ground here. Mike's and the other authors articles are about benefiting the public not taking from them.

Re: Re: Changing IP and MAC address is not wrong

Do you actually know anything about this case? The guy didn't break any laws, his behavior was rude and discourteous regarding the quantity of downloads, but MIT had a wide open network that gave anyone on it with any wifi enabled computer authorized access to JSTORS through a deal between them and MIT. Anyone could get on there and do what he did, easily. MIT's system didn't notify the guy of anything when they decided to block his address, so he wouldn't even know for certain if he was dodging them by changing it or if changing it simply fixed a connection problem. They were threatening the gut with thirty years for copying files he had legal access to due to the network configuration and licensing arrangements in place at MIT and JSTORS. It's like threatening to jail you for thirty years for using the photo copier at the library too much.

Re: Re: Re: Re: Changing IP and MAC address is not wrong

He may or may not have known, but what he couldn't possibly have known is that the US government would have threatened him with upwards of 30 years in prison for a mere act of downloading some publicly funded research.
Then again, how would he have known if the network admins didn't put up warning signs saying he's hogging bandwidth? Back when I was on a very limited data cap, I'd get warnings from the ISP when I was getting close to the limit. They wouldn't just disconnect me randomly, they'd warn me first. If I was being disconnected randomly, my first thought is that there's some sort of problem with my connection, not that someone is deliberately hindering me.

Re: Re: Re: Re: Changing IP and MAC address is not wrong

Yes or no: Do you believe that at all times, you are commmitting no action for which the government can pursue you and threaten you with decades of imprisonment?
At worst, an intelligent fellow like Swartz would have thought he could only be charged with trespassing and thus, the required punishment would be small. At no point would he have thought "Gosh, the government might want to put me away for 30-50 years for what I'm about to do"
And if he had had...that only strengthens the arguments of those of us at Techdirt at how twisted, abusive and destructive the US government has become.

Re: Re: Re: Re: Changing IP and MAC address is not wrong

Yes or no: Do you believe that Aaron believed at all times that it was 100% legal for him to scrape that database?

I can't say. I wouldn't know his precise intentions.

But I can say if it was me, I would understand that what I was doing was perhaps a civil infraction (copyright infringement, not even real sure of that one since there was never any plans to distribute and he technically had permission for unlimited downloads) and perhaps minor misdemeanor charges (trespassing).

And if I felt the cause to be just enough I would certainly risk that as a form of civil disobedience.

What would have never crossed my mind in a million years is that what I was doing deserved 50 fucking years of hard time in Federal prison.

Even if Swartz was permitted to access the database, that doesn't mean that it was legal for him to do whatever he wanted with it. JSTOR employed code-based restrictions to limit the scope of permitted uses, such as by using measures to prevent database scraping of the sort that Swartz wanted to do. Swartz bypassed these measures so he could scrape the database. That's hacking. That's a crime.

Very intreasting link. Thank you. I have read the abstract and will read the full paper later.

JSTOR employed code-based restrictions to limit the scope of permitted uses, such as by using measures to prevent database scraping of the sort that Swartz wanted to do. Swartz bypassed these measures so he could scrape the database. That's hacking. That's a crime.

Well it may be hacking. But as for a crime - that's where I vacillate.

Even if the supposed code-based restrictions where in place, were not users of MIT's network granted unlimited downloads? It seems that these code-based restrictions you speak of only flagged heavy downloaders and they appeared to have worked. I'm not convinced Aaron "bypassed" anything, really.

Even if the supposed code-based restrictions where in place, were not users of MIT's network granted unlimited downloads? It seems that these code-based restrictions you speak of only flagged heavy downloaders and they appeared to have worked. I'm not convinced Aaron "bypassed" anything, really.

No, the system was set up to disallow heavy downloading. He circumvented that restriction with his "keepgrabbing.py" script. That's hacking. A person could not do heavy downloading without bypassing the code that prevented it. He bypassed that code with his own code.

They blocked his IP address. He got a new one. They blocked a whole range of IP addresses and blocked his MAC address. He spoofed his MAC address. They blocked all of MIT's access. He went into a closet and hard wired access to the network. That's bypassing too.

Not the database, the contents of the database, which was in the public domain. There is a difference.

Some things were in the public domain and some things were copyrighted. So what? Even if every single document in that database were in the public domain--which is not even close to the reality--that wouldn't change the analysis one iota. He wasn't charged with infringement. He was charged with wire fraud, hacking, etc.

Actually, if you read Kerr's analysis, in quoting the decision in Seidlitz, Seidlitz hinged on whether the content acquired was the "property" of OSI implying (though Kerr fails to mention it) that had the content NOT been modified into something that was uniquely theirs, the copying would not have constituted wire fraud. So how exactly then does public domain material acquired here constitute wire fraud?

Actually, if you read Kerr's analysis, in quoting the decision in Seidlitz, Seidlitz hinged on whether the content acquired was the "property" of OSI implying (though Kerr fails to mention it) that had the content NOT been modified into something that was uniquely theirs, the copying would not have constituted wire fraud. So how exactly then does public domain material acquired here constitute wire fraud?

Even if something is in the public domain, it doesn't mean that a particular copy is not someone's property. The copies available on JSTOR are someone's property, whether public domain or not. The fact that something is in the public domain would affect the copyright analysis, but that's not relevant to Swartz's case since no copyright infringement charges were brought.

Since reading comprehension is obviously not your strong suit, I will explain it to you. In Seidlitz, that Kerr cites, the decision on whether or not wire fraud occurred HINGED on whether or not WYLBUR was OSI's property. The defense had argued that because WYLBUR was readily available from multiple sources and used by many companies that taking a copy of it from OSI did not constitute wire fraud. However, the court disagreed BECAUSE the version of WYLBUR that was copied from OSI had been modified for their specific purposes and gave them specific competitive advantage in the market place so therefore it WAS their property. This decision implies that if it had not been modified, the defense's argument would have been sound.

Since reading comprehension is obviously not your strong suit, I will explain it to you. In Seidlitz, that Kerr cites, the decision on whether or not wire fraud occurred HINGED on whether or not WYLBUR was OSI's property. The defense had argued that because WYLBUR was readily available from multiple sources and used by many companies that taking a copy of it from OSI did not constitute wire fraud. However, the court disagreed BECAUSE the version of WYLBUR that was copied from OSI had been modified for their specific purposes and gave them specific competitive advantage in the market place so therefore it WAS their property. This decision implies that if it had not been modified, the defense's argument would have been sound.

You're reading into it too much, I think. The court of appeals doesn't say that a party's particular copy of a work that is no longer copyrighted is not their property. Nor would they have said that, since it's not true (and nor was that even a copyright case). I have books on the shelf where the content is in the public domain. That doesn't mean I don't own that copy.

Sorry, misread your previous comment. Text was getting small on the iPad with the depth of the thread. By property, I think the court in Seidlitz was referring to Intellectual Property (ie Copyright) so although this isn't a copyright case, copyright appears to be the point on which it hinges.

And how exactly do you know that what was taken was copyrighted? Are you privy to the list of specific articles that were downloaded and have verified that any of them not in the public domain? You might try turn this around and say well how do I know they were all in the public domain. I don't, but I don't have to from a legal perspective as you are the one than alleges that he is guilty and therefore the burden of proof lies with you.

And how exactly do you know that what was taken was copyrighted? Are you privy to the list of specific articles that were downloaded and have verified that any of them not in the public domain? You might try turn this around and say well how do I know they were all in the public domain. I don't, but I don't have to from a legal perspective as you are the one than alleges that he is guilty and therefore the burden of proof lies with you.

I'm using JSTOR for legal research this evening. I'm familiar with the database, and from what I can tell it's mostly copyrighted stuff (like journal articles). How could Swartz have possibly avoided all the copyrighted stuff? Regardless, copyright is not the issue with Swartz since he wasn't charged with infringement.

Either the content is their property or it isn't, if you think by property he means the specific copy then that doesn't make sense because what the defendant in Seidlitz took was a copy of their copy so they HAD to be referring to INTELLECTUAL PROPERTY instead of actual property. So then that becomes an issue of copyright. And by property they have to mean do they own the copyright or not. And according to the courts decision because they do, it constitutes wire fraud implying that if they didn't wire fraud would not have occurred. So although it is not a copyright case directly, copyright is a key element.

Either the content is their property or it isn't, if you think by property he means the specific copy then that doesn't make sense because what the defendant in Seidlitz took was a copy of their copy so they HAD to be referring to INTELLECTUAL PROPERTY instead of actual property. So then that becomes an issue of copyright. And by property they have to mean do they own the copyright or not. And according to the courts decision because they do, it constitutes wire fraud implying that if they didn't wire fraud would not have occurred. So although it is not a copyright case directly, copyright is a key element.

The database is JSTOR's property. I doubt that JSTOR owns many if any of the actual copyrights, since the journals or the authors would hold those, but the database that JSTOR compiles and maintains is their property. TThere is harm to JSTOR's property interest in the database when someone scrapes it and takes more than they are allowed to take. That database is JSTOR's "primary source of competitive advantage," to borrow Prof. Kerr's phrase. (See "Cybercrime's Scope" article that I linked to above.) The program in Seidlitz was property because they spent time and money to make it, and it provided the company with value. This is just like how the database is JSTOR's property because they spent time and money to make it, and it provides the company with value that they sell in the marketplace. The scraping a misappropriation of someone else's property because it's taking something of value without paying for it. Even if a given document in the database is in the public domain, JSTOR adds value to it by scanning it, cross-referencing it, making the footnotes links, etc. They put their time and money into it, giving it value and giving them a property interest. Labor begets property, just like Locke said. It's not a copyright claim at all. It's a fraud claim based on the wrongful taking of something of value without paying for it.

Again, the database was INCREDIBLY OPEN. JSTOR dropped their case against Swartz, indicating they weren't "harmed".
I'm sitting on a chair right now that I built. I value it at $10 trillion. Doesn't mean that if someone were to nick it, they should be threatened with 50 years in prison. Or if I invited a friend over and he wandered over to my logged in desktop and copied a public domain work that I had had some footnotes on.

Again, the database was INCREDIBLY OPEN. JSTOR dropped their case against Swartz, indicating they weren't "harmed".

Those millions of documents are worth millions of dollars. Aaron acquired something of value without paying for it. That benefited Aaron and harmed JSTOR. The benefit to Aaron is what makes him liable--not the harm to JSTOR. The harm would be relevant to the issue of damages, but the issue of whether or not he's guilty would only look at whether he gained something of value without paying for it.

As he was allowed to download one document and even multiple documents, at what specific threshold does the benefit to a user become fraud? Please include the specific citation for where the number comes from? Are you saying that if I use Google Maps, complying with all of their terms of service, and the benefit to me is great enough, I suddenly commit a crime? That is ludicrous.

Either there was a policy in place at the time or there wasn't. You can't just make it up as you go and then claim people broke the law by violating it when they never saw it much less agreed to it because you just made it up.

However, even if he had released the documents on file sharing networks as his intention is alleged, their competitive advantage would still have remained intact as well as that they have it indexed and searchable from a single source which is the difference I referred to earlier between taking the entire database and the content from it.

Please point us to the published policy that states what defines what the specific amount someone is allowed to take before they commit felony fraud and how the person using their system is notified and agrees to such policy prior to gaining access to the system.

If the issue of property (ie Copyright) is irrelevant, the why does the court in Seidlitz, and Kerr even mention it?

Deprivation of a property interest is relevant since it's one of the elements of the crime. The program in Seidlitz was property just as JSTOR's database is here. Even though Seidlitz merely copied the company's property--not actually depriving them of their copy--the Fourth Circuit held that the software Seidlitz obtained was property. The same applies here, which is Kerr's point. The other poster is trying to bring copyright law into this analysis, and I was saying that the owner of the copyrights in the database is irrelevant. This isn't an infringement case, is a fraud case.

If they had features in place, such as captchas or automated throttling, then he wouldn't have been able to do what he did so no they didn't. All of the steps he took can easily be characterized as standard network troubleshooting so again, how is that hacking? Expert witnesses were ready to testify that nothing he had done had meant ANY reasonable definition for the term.

The partner of the internet activist Aaron Swartz, who killed himself earlier this week, has blamed his suicide on the stress of his prosecution.

Taren Stinebrickner-Kauffman said she was "absolutely confident" that Swartz killed himself because of the case, in which he was being prosecuted for downloading academic articles from a university archive.

Swartz, 26, a prominent open-internet advocate who helped build Reddit and RSS, was found dead in the Brooklyn apartment he shared with Stinebrickner-Kauffman on January 11. They started dating a few weeks before Swartz was indicted in 2011.

He was set to go trial next month for downloading academic articles from JSTOR, an online academic journal library, at the Massachusetts Institute of Technology. If convicted, he could have faced a 30-year jail sentence, although it emerged this week that he had been offered a six-month term in a plea bargain. "The legal system has lost all sense of mercy and justice and it has been replaced with punitiveness and vindictiveness," Stinebrickner-Kauffman told Mail Online.

"Felony charges change the course of people's lives. There are things Aaron maybe wanted to do – like go into government – and it's just ludicrous that one act like this could prevent somebody like him from serving his country. The risk was too much for him."

[...] Strinebrickner-Kauffman is the executive director and founder of SumOfUs [http://sumofus.org], a movement that attempts to counterbalance the power of corporations. She said that Swartz would take the subway with her to work, but the morning of January 11, he told her he wanted to stay home and rest.

"I wanted to stay with him but he said he didn't want me to and that I should go to the office," Strinebrickner-Kauffman said. "So I did."

She found him that evening dead of an apparent suicide in their apartment. [...]

Re: Re: Re: Re: Re: Swartz's Girlfriend Explains

If as Samuel Clements stated "All you need is ignorance and confidence; then success is sure" then yes I agree you must be highly successful.

If on the other hand success is measured on not how you lived but instead what you have accomplished and done within the span of your life to enhance the human condition to become immortal, then you based on your comments are an abject failure

Re: Re: Re: Re: Re: Swartz's Girlfriend Explains

"I am more successful that him,"

Okay, what acts of greatness have you accomplished? What is your success rate? Just who the fuck are you then?
For the record, I also see suicide as something not to be proud of, but I don't speak ill of the dead like you bastards are. Yes, let's be like you, and focus entirely on the fact this guy killed himself, let's completely ignore everything he accomplished in his short life, completely ignore any and all possible motivations he may have had in doing the deed.

Re: Re: Re: Re: Re: Re: Swartz's Girlfriend Explains

ive worked as a researcher to develop a new kind of Solar Cell that is more efficient, I have developed medical diagnosis system that will save lives. I have designed and built and installed system to provide early warning system for Dam failures, that will save possibly thousands of lives should the dam fail.

I have repaired life critical communications system for shipping that will save lives by working as required when an emergency strikes.

I have designed and build aid's for disabled people making their quality of life a great deal better than it was before.

I have worked in the military saving boats and ships from desaster, and saved lives.

I have been a fire fighter, helping to save peoples houses, their lives and the environment.

I have no issues about what I have achieved in my life, and I have nothing to be embarrassed about nor have I even considered taking my own life, and screwing up many others lives by that selfish act.

I have helped many many people prosper and be a success, I have done work to make people safer, and have worked to improve the environment.

There are many, many other things I have done to improve peoples lives, help them (DIRECTLY) and to make their and YOUR life better and easier.

I could go all day listing things I have done that directly and indirectly improves peoples lives, the environment, and that will continue to help and improve society.

What did this guy do again ??? RSS and ???

If I had of killed myself as a kid, I would not have done the things I have done, that has helped many people in many diffiernt but real way's.

but this article is not about me, it's about someone else, so why ask me what I have achieved ?? I am NOT going to compare myself to someone who you honor for killing themselves. But as you asked I will give you some small examples of what I have done to improve the lives of other people, (significantly). Whereas you or the auther of this article does not seem to be able to list very much of what this person has done to actually help anyone or to improve the lives of people.

Re: Re: Re: Re: Re: Re: Re: Swartz's Girlfriend Explains

Fine. Want a cookie? So if you truly have done all of these things then I guess you feel that it entitles you to spew the kind of vicious crap that you have here. Lovely sense of morality you have there. Please do the rest of the world a favor, do not attempt to raise children as the world already has enough people with mental issues from inept parental figures.

Re: Re: Re: Re: Re: Re: Re: Swartz's Girlfriend Explains

Well, mr anonymous coward we'll just have to take your word you've done all those amazing things then huh?

Of course, I find it more amusing/interesting that you've done all THOSE things and yet somehow in the process never found time to even attempt to learn how to use proper grammer and capitalization/spelling when writing.

Re: Re: Re: Re: Re: Re: Re: Re: Swartz's Girlfriend Explains

Re: Re: Re: Re: Re: Re: Re: Swartz's Girlfriend Explains

"but this article is not about me, it's about someone else, so why ask me what I have achieved ?? I "

You were the one who practcally BEGGED for that question to be asked when you said you were more successful.
Also...CITATION NEEDED. I too can say I'm the best thing since sliced bread, but it won't mean anything unless I can post proof of my accomplishments.

" I am NOT going to compare myself to someone who you honor for killing themselves."
Read what I wrote, dumbass. I also don't like it when people commit suicide (unless its say a soldier sacrificing his life to buy time for his comrades to escape or something along those lines).
If I were to choose one act where Swartz helped people, it was his help in organizing the blackout last year, of driving attention to SOPA. He helped drive home the idea that if SOPA or SOPA like laws passed, this is what the world would have looked like, with sites shut down with just accusations, of due process of law being side-stepped.

Re: Re: Re: Re: Re: Swartz's Girlfriend Explains

Re: Re: Re: Swartz's Girlfriend Explains

While I do think that suicide is the easy way out, after all, living is hard to do, in this case, while I normally have no sympathy for people who commit suicide, I have even less for those who drive people to suicide.

And what little sympathy I have for them doesn't even exist for people who blame the people who killed themselves.

I, robot

The more I hear about this case, the more it seems to not make sense...

Aaron wasn't prosecuted for the MIT issue. He was being prosecuted for Wikileaks. The timeline for his seizure and arrest coincides with him getting too close to any information about the treatment of Manning.

He was attempting to find out how he was treated in Quantico and the Secret Service cut him off.

But it seems to be a very dangerous game that these "powerful people" have played. Aaron paid a heavy price as a whistleblower. His death sparked a very noticeable shift in tone in how the US has treated people that want to share information they don't like.

It's almost as if Aaron watched "I, robot" and decided to become the scientist. It's just an off sense of deja vu in how events have transpired in a week.

Re:

Re:

I like how you call Masnick the sick mother fucker but then go up and down the comment page posting about how Aaron was a coward and accusing him of committing illegal acts now that he can't defend himself anymore.

I sure am glad we have downies such as yourself to post here,

I couldn't make half as believable satire of your ridiculous, selfish, stupid, self-fulfilling arguments if I tried. Not without comparing you to various mental health patients, of course.

Re: Re:

fact is suicide is a highly cowardly and selfish act, there is no real excuse for it. I is not a good thing, and I do not look on someone who has suicided any worse, but I do feel deeply for the people he left behind and the issues they will have to deal with for the rest of their lives.

but what is far worse, is someone trying to gain advantage from this tragedy. This is what Masnick is seeking to do..

Re: Re: Re: Re:

The troll(s) hate Google, hate any mention of a piece of advanced technology that might somehow possibly be used to copy files, whether legal or illegal.
Which is why I don't believe anything they say. The cost to society of making sure that people don't copy certain files is far too high: retardation of scientific progress, loss of basic human rights, no due process in a court of law, vilification amongst your peers for merely being accused, etc.

Re: Re: Re:

You were, are and will be affected by SOPA-like laws (laws, not an ORGANIZATION, dumbass!) what with the erosion of civil liberties, the lack of due process, punishment upon accusation, and the stonewalling of those in the legal system when called out on their bullshit.
All of that is far worse than whether or not that movie I downloaded to watch a couple days ago "cost" an actor a few bucks.

I am saddened by this horrible loss, and not even a little bit surprised at the response of our resident trolls.

Let me boil this down for your handlers...

You have gone to far, and your indifference for human life will help rally even those who supported you to align against you.

So feel free to keep spewing crap, push us that much further.

Copyright is not more important than a life, and that you can not process that simple fact should make you weep. Instead you will weep as everything you've built to protect your empire is ripped away, and barriers will be put in place to stop you from trying to do it again.

Future deeds

He accomplished so much, but the really distressing point is how much more all of us expected him to accomplish in the future, and how we will all be worse off without that happening.

I'm going to say something that will be unpopular but I believe it needs to be said. I am upset about Aaron's suicide, less than some, more than others, but we really shouldn't talk about his future. First, even though he had shown the ability to keep himself relevant in the tech field, he might have found other passions as he grew older. It's unlikely but a possibility because I've seen life events like getting married, having kids, getting a serious illness, etc. change a person's outlooks and goals. Second, a lot of what I keep hearing or reading is about other's expectations for Aaron. That's not fair to throw your expectations for another's life into your stories. Even if his closest friends said that he talked about doing this or wanted to work on that, it doesn't actually mean that he would have gotten around to it. Finally, we're not ALL better for his previous work and we certainly won't ALL be worse off for not having his unknown future acts become reality. For instance, everyone talks about his part of RSS and how important that is for the world but in reality only a small portion of a small subset of the population use RSS. So we're not ALL better for it. He's really credited with fighting SOPA but again that fight didn't help ALL of us except in the most roundabout way. We don't know what or if he would have done anything in the future so we can't be worse off for something that we don't know was going to happen.

I just think we need to stop romanticising people and focus on what they did and how their legacy can inspire others to either carry on the work they started or to go after their own goals/dreams. In fact, I'd love to see a story about how Aaron's suicide has focused/refocused Mike and the TechDirt staff and what they would like to do in the future. They're still here with us so it's their expectations for themselves that can still make a difference.

Re: Future deeds

Re: Future deeds

Bravo. You said what the trolls possibly meant to say, and said it in a decent and polite manner. I don't agree with you, but I applaud what you say nonetheless. The fuckers up above...they can burn in hell for all I care.

Re: Re: Future deeds

Re: Future deeds

I respect your perspective, however, the fact remains that Aaron DID accomplish A LOT in his short life and obviously was a doer that not only talked about accomplishing things but took action to accomplish them. And while it is true that many things happen that impact our lives which change its course, our past is still an indication of the direction of our future.

You also underrate the impact of RSS. While true that the percentage of people that use RSS by setting up RSS feeds or subscribing to them directly may be low, what you fail to take into account is all of the people that are impacted by using technology based off of RSS. (Uh... Hello... Twitter?). When you take that into account, the impact is MUCH higher.

So while I agree with your comment about not romanticizing and instead focusing on what we who are still here can do to impact our future in a positive way, I have to respectfully disagree with how you arrive there.

Re: Future deeds

I agree with you to some extent. Except that you chose to talk about RSS when I'm fairly sure the "ALL" part was meant to his activism for freedom of information/speech as a whole. RSS was but a small part of it. I'm fairly convinced that if he went through this trial and emerged victorious he'd shift part of his energy into fighting this incredibly unfair system that put such a huge burden on him and on many other innocent (or not so innocent but far from real criminals).

While I do agree that there has been some romanticizing it is fair to argue that he could have achieved a lot. Regardless of what you think, building a family, having kids is well within the scope of great achievements for many. If anything, he'll not be able to achieve anything now.

A form of justice?

It has come to my attention that the alt.usenet.kooks Usenet newsgroup has nominated the United States Department of Justice for their "Bobo Award", which is the "highest" of their awards and is given only to those kooks whose online looniness leads to bad real-life consequences. The previous "winner" was Andrew Cheung, the starvation-diet proponent who ended up causing several deaths. The reason for the DOJ's Bobo nomination is, of course, having driven Aaron Swartz to suicide.

The nominating post is available at Google Groups:
http://groups.google.com/alt.usenet.kooks/msg/8c4a53aec01d0af0 is the individual message URL, or you can search for "bobo justice 2013" and it is fourth on the list, titled "Major Dual NOMINATIONS". (Warning: that thread has several trolls posting to it.)

People might be interested in voting for those clowns at the DOJ when the awards are voted on, I think in February.

You might also be interested that the author of the nomination extensively cites Techdirt's own coverage of the story in support of her arguments.

(Note: voting would require making Usenet posts to a newsgroup known to harbor its own share of stalkers and nutjobs; you might want to take steps to protect your identity, not from the government but from other kooks. Free news server AIOE requires some configuration but obscures your posting IP and allows arbitrary "from" names, without signup; Google Groups is easy to use if you're not familiar with Usenet, but exposes your posting IP, so you might want to use a proxy of some sort if you vote from there, or to post from a public WiFi some distance from both your home and work.)

I rather doubt anything Mr. Kerr said or could have said would dissuade persons from declaring the legal case against Mr. Swartz was bogus/garbage from the start.

Surprisingly, I have yet to read any article traversing the legal points raised by Mr. Kerr in his consideration of the grand jury indictment against Mr. Swartz. I have read many laments about the loss of a very talented and respected individual, but these in and of themselves do not refute Mr. Kerr's legal points.

In no way should anything here be interpreted as my being insensitive to this obvious tragedy. My comment is limited solely to Mr. Kerr's first article at Volokh concerning the legal sufficiency of the indictment.

Re:

Surprisingly, I have yet to read any article traversing the legal points raised by Mr. Kerr in his consideration of the grand jury indictment against Mr. Swartz. I have read many laments about the loss of a very talented and respected individual, but these in and of themselves do not refute Mr. Kerr's legal points.

That's right. Mike pretends like Kerr's analysis is unsound, but then he doesn't actually refute the arguments. Nor do I think he can.

Re: Re: Re:

I just now finally got a chance follow that link and that article is more or less the side of the argument I've been arguing for two days now. Could have saved myself a shitload of time linking to that. Damn.

explain a situation in network fault diagnosis where you would be able to determine where the fault is by changing your IP or MAC address ? I've working in IT, computing and technology since the 1970's professionally, I have NEVER had to change the IP or MAC address to determine or diagnose a fault in the system or network.

on the other hand if I wanted to hide my identity, the very first thing I would do is change my IP and MAC address as these are clear pathways (an identities) of the computing equipment you use.

So, who is making strawman arguments about why he would change his IP and MAC ? Was he trying to fix a faulty network when he changed them (at different times), or was he trying to hide his identity ?

Re: Re:

Come to think of it:
"my network has stopped working".

I call bullshit, you have never worked in IT. They dont call and say "my network has stopped working". They call and say I cant get to the internet or my email is not working, or Universal Type Server wont connect. I searched our ticket system and that term returns nothing. (We support 6000+ here in the US and another 2500 users in 5 countries.)

Re:

Really? So, you've never reset a router, plugged out an ethernet cable, or anything similar along those lines? Doing such a thing can and does change your IP address. Same with MAC addresses, I've done it on my own network when attempting to diagnose problems.

Changing MAC addresses for this purpose is less common, but I've done that intentionally on more than one occasion as well.

I've done these things to get my machines working again, not for diagnosis, but when these techniques work, they do give you a strong clue as to what's going wrong. Therefore, they are valid diagnostic techniques.

All of which is purely academic, of course, and not really that related to Swartz's actions.

Re:

Never? No ipconfig /renew ? Never had a DNS hiccup? Never in 43 years?

I think someone is not being truthful here.

"I wanted to hide my identity"
So now a MAC/IP address is an identifiable source? You register your mac with every network admin whose network you connect to?

The only thing I come close to agreeing with you on is the MAC address spoofing. He knew he was hitting the network kind of hard but that in itself is not a crime. And a machine was blocked, not a person. At any time he could have pulled out another laptop and continued download documents that were freely available.

Re:

I have NEVER had to change the IP or MAC address to determine or diagnose a fault in the system or network

Sure, in 1970 there were no such thing as the internet and complex networks.

on the other hand if I wanted to hide my identity, the very first thing I would do is change my IP and MAC address as these are clear pathways (an identities) of the computing equipment you use

On an open network that uses DHCP? Really? So you'll believe that I am Barack Obama because I have a registered user here, use a static IP and because I say so? After all, IPs are very good identifiers right? (note: there are about 2500 people connected through this IP right now) (also, at home I cloned the MAC of my computer to the router which makes me a criminal but never mind that, you can still identify who exactly is using the connection at any given time by just looking at the assigned IP address by the DHCP and the spoofed MAC, right?)

So, who is making strawman arguments about why he would change his IP and MAC ?

You are. My IP is dynamic at home. I've been assigned IPs that were banned on some networks because of some moron that used it. So I simply reset my modem and get a new IP. That's fixing a problem. If I get blocked for whatever reason I will change IPs/MACs to go through again and check what happened. But that makes me a criminal right?

Another shameful loss

It just occurred to me that one of the other things we lost with Aaron's decision is that this case had the potential to set some real legal precedent for reeling in the abuses of the CFAA by the DOJ. I would have liked to see the issues actually presented in court here. Fortunately, we instead at least get more attention and calls for change in the other issue of prosecutorial abuse which is also important. However, it is truly sad that the cost for that to happen had to be so high.